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State high court hears debate over open records

News media and court clerks argue that challenges need to come before records are sealed.

By ASSOCIATED PRESS
Published March 6, 2007

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TALLAHASSEE - The Florida Supreme Court heard a wide range of objections Monday to proposed rule changes designed to stop the improper sealing of court records and dockets.

The proposal was in response to last year's discovery that hundreds of civil and criminal cases involving television personalities, judges, police, elected officials and other prominent people had been sealed as part of secret dockets in some courts, mainly in South Florida.

The news media, prosecutors, public defenders, court clerks, plaintiffs' lawyers and a judge opposed all or parts of the proposal made by a Florida Bar committee. The justices will act at a later date.

The oral argument included an exchange between Chief Justice R. Fred Lewis and Circuit Judge Judith L. Kreeger, chairwoman of a Supreme Court committee conducting a broader study of public access to court records.

Kreeger called the proposal premature and urged a delay until her panel presents an interim report in June or a final one a year from then.

"Why should we leave a misunderstanding in place?" Lewis asked her.

Kreeger said the problem resulted mostly from failure to follow existing rules. She noted Lewis already has asked chief judges in all circuits to issue administrative orders to prevent "super sealing" of dockets.

"I think the quick fix that is needed has been done," Kreeger said.

Lewis, though, said the orders differ from one circuit to another.

The statewide rules proposed by a Florida Bar committee would require public notice when records are closed. The public, including the news media, then would have an opportunity to ask for a hearing to open the records.

Media lawyer Carol Jean LoCicero argued such challenges should come before, not after, a record is sealed.

She also objected to a provision that would put the burden of proof on challengers rather than parties that sought the sealing.

"That means that it's harder for us to get access to our own government," LoCicero said after the hearing.

"That order would be cloaked in the same concept of reliability as any other judicial order," Dimond told the justices.

LoCicero afterward said it may be better for the justices to do nothing if they fail to make the modifications she proposed.

"Maybe that process discourages inappropriate behavior, but maybe it also covers inappropriate behavior because it all appears to be correct under the rule," she said.

LoCicero said one element of the proposal, though, should help by clarifying to court clerks that they should not seal an entire file just because a judge orders that certain documents be sealed.

Carol Touhy, a lawyer for Volusia County Court Clerk Diane Matousek, said the proposal would put an undue burden on clerks because they would have to remove records sought to be sealed from public files before judges rule.

She said confidentiality should be determined before documents are filed.

W. Hampton Keen, member of a West Palm Beach law firm that files product liability lawsuits, argued the proposal would give corporate defendants a mechanism to delay litigation by seeking orders to seal alleged trade secrets. Keen urged the justices to exempt trade secrets.